New York State Court Of Appeals Holds That A Party May Be Compelled To Provide Adverse Counsel With HIPPA Compliant Authorization for Ex Parte Interview
January, 2007
The New York State Court of Appeals in Arons v. Jutkowitz, --- N.E.2d ----, 2007 WL 4163865, 2007 N.Y. Slip Op. 09309, N.Y., November 27, 2007 (No. 2, 147, 153, 148, 4), and related cases, held that a party may be compelled to provide an adverse party with a HIPAA-compliant authorization permitting an adverse party to conduct an ex parte interview of the party’s treating physician.
It is well established law in the State of New York that a party who puts his or her physical or mental condition in controversy waives the physician-patient privilege. Pursuant to the Civil Practice Law and Rules (“CPLR”) and the Uniform Rules of the New York State Trial Courts, there are many methods to obtain the discovery of medical information through formal methods, including the exchange of medical records, reports of physical or psychological examinations and depositions of treating physicians. Specifically in medical malpractice matters, the physical examination of a Plaintiff proves to be an invaluable tool for defense counsel as it relates to claimed damages. By bringing a personal injury action, Plaintiff’s physical condition is put in controversy and (s)he must submit to a physical examination. Chester v. Zima, 41 Misc.2d 676, 246 N.Y.S.2d 144 (Erie County, N.Y. 1964); Siegel, NY Prac., §363. The statute governing such physical exam is CPLR §3121(a), which permits a physical examination of a party after commencement of an action in which the mental or physical condition of a party is in controversy. The reason for permitting a physical examination in a personal injury case is to attempt to narrow the areas of medical disputes and to eliminate most of the controversy relating to the medical side in these types of cases. Evens v. Denny’s, Inc., 129 Misc.2d 767, 494 N.Y.S.2d 67 (1985); DelRa v. Vaughan, 2 A.D.2d 156, 154 N.Y.S.2d 336 (3d Dep’t 1956); Milam v. Mitchell, 51 Misc.2d 948, 274 N.Y.S.2d 326 (Niagara County, N.Y. 1966).
Moreover, defense counsel will routinely attempt to obtain information not generally found in medical records or in physical examinations by conducting an ex parte interview of a plaintiff’s treating physician prior to trial. However, after Congress passed the Health Insurance Portability and Accountability Act, many treating physicians became leery of granting these interviews to defense counsel without a specific authorization permitting defense counsel to discuss a Plaintiff’s health information. Furthermore, Plaintiff’s counsel typically reject a demand to supply defense counsel with this authorization and, thus, defense counsel were left with no choice but to seek judicial intervention to compel Plaintiff’s counsel to provide these authorizations.
Complicating matters was the fact that the four different judicial departments in New York State each had different criteria in permitting defense counsel access to these specific authorizations. For example, a court in New York County may compel Plaintiff’s counsel to provide defense counsel with an authorization while a court in Albany County may deny such a request or permit the ex parte interview, but mandate that any work product generated by defense counsel during the ex parte interview be disclosed to Plaintiff’s counsel, including any written notes or statements.
In the cases before the Court, in the lower courts, Defendants were seeking to conduct pre-trial, but post Note of Issue, ex parte interviews with treating physicians which had been permitted since Anker v. Brodnitz, 98 Misc.2d 148, 154 aff’d 73 A.D.2d 589 (2d Dep’t 1979). In Arons and its companion case, Webb v. New York Methodist Hospital, --- N.E.2d ----, 2007 WL 4163865, 2007 N.Y. Slip Op. 09309, N.Y., November 27, 2007 (No. 2, 147, 153, 148, 4), Plaintiffs were ordered to provide authorizations permitting their respective physicians to agree to ex parte interviews and defense counsel were Ordered to furnish Plaintiff’s counsel with any written statements or materials generated during the course of those interviews. However, those Orders were reversed by the Appellate Division, Second Department which found that Plaintiff’s counsel should not have been ordered to provide the authorizations in the first place. Confusing matters, in Kish v. Grahm, --- N.E.2d ----, 2007 WL 4163865, 2007 N.Y. Slip Op. 09309, N.Y., November 27, 2007 (NO. 2, 147, 153, 148, 4), another companion case to Arons, the Appellate Division, Fourth Department also reversed a trial court order compelling authorizations.
The Court of Appeals reversed all three cases and held that Plaintiffs should be compelled to provide HIPAA compliant authorizations and, in the cases of Arons and Webb, that it was improper for the trial courts to direct defense counsel to disclose to Plaintiffs material from any ex parte interview with any treating physician. Finally, the Court of Appeals further outlined a procedure in obtaining these interviews by stating that counsel must first obtain a HIPAA compliant authorization, subpoena, Order, discovery request or “other lawful process with satisfactory assurances relating to either notification or qualified protective order.”
Learning Point:
In New York, defense counsel are permitted to conduct post Note of Issue ex parte interviews with a Plaintiff’s treating physician prior to trial. Further, they must acquire such authorization within a specified method.
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